5 Wentworth

Professional Career

Mr Cooke specialises in intellectual property law (including patents, trade marks, copyright, designs, confidential information and misleading and deceptive conduct cases), trade practices, corporate and commercial and administrative law. Mr Cooke has appeared in a number of leading cases in the High Court of Australia and regularly appears in the Federal Court of Australia, the NSW Supreme Court and also before hearing officers of IP Australia in respect of registration of patents and trade marks. He is also available to appear in the Copyright Tribunal of Australia.

Before joining the Bar, Mr Cooke was a Senior Associate in the intellectual property department of a national law firm in Sydney. Before that he practised in a London law firm in commercial litigation and intellectual property where he was admitted as a UK qualified solicitor and later as a solicitor advocate. Mr Cooke was previously the Associate to the Chief Justice of Western Australia.

Mr Cooke is recognised in Best Lawyers in Australia (2013) in Intellectual Property; Doyle’s Guide to Australian Leading Lawyers (2013) as a leading junior counsel in Intellectual Property and in The World’s Leading Trademark Professionals (2013).

Selected Cases

Patents

Mr Cooke is currently briefed in the following Federal Court patent proceedings: Spirit Pharmaceuticals Pty Ltd v Mundipharma Pty Ltd (pharmaceutical extension of term); Novartis AG v Hospira Pty Ltd (pharmaceutical patent infringement and revocation); Ultimate Medical Pty Ltd ats The Laryngeal Mask Company Ltd (medical device patent infringement and revocation); Kembla Watertech Pty Ltd ats Enviro Global Pty Ltd (mechanical patent infringement and revocation); Tiger Turf International v FieldTurf Tarkett Inc (synthetic turf – appeal from opposition proceedings); Performed Line Products (Australia) Pty Ltd v Sicame Australia Pty Ltd (mechanical patent revocation and infringement); D&D Group Pty Ltd v Safetech Hardware Pty Ltd (mechanical patents and design infringement and revocation).

Mr Cooke recently appeared in the following Federal Court trials: for Samsung in its claim against Apple concerning the iPhone and iPad (computer patent infringement and revocation); for Vehicle Monitoring Systems Pty Ltd against SARB Management Group Pty Ltd (mechanical patent infringement and revocation) (decision reserved).

Mr Cooke appeared for Spirit Pharmaceuticals at first instance, on appeal and in the High Court in successfully revoking a pharmaceutical patent owned by Sanofi-Aventis in Spirit Pharmaceuticals Pty Ltd v Sanofi-Aventis [2008] FCA 1194 [2009] FCAFC134 (special leave to appeal was refused by the High Court [2010] HCATrans 59). He has also appeared in Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 Pty Ltd v H Lundbeck A/S [2008] FCA 559(pharmaceutical patent). He appeared for Mr Law in his successful mechanical patent infringement proceedings against Razer Industries Pty Ltd [2010] FCA 1058.

Mr Cooke also appeared for Austal Ships Pty Ltd in its successful patent entitlement dispute in Austal Ships Pty Ltd v Damien Smith [2011] APO 04. Ships Pty Ltd v Damien Smith [2011] APO 04.

Trade marks and misleading and deceptive conduct

Mr Cooke is currently briefed by Meguiar’s Inc (a 3M company) against Chadie Bek in Federal Court proceedings (trade mark infringement, passing-off, ACL).

Mr Cooke appeared for the Commonwealth in its successful High Court proceedings against BATA, Imperial Tobacco, JT Tobacco and Philip Morris concerning tobacco plain packaging (trade marks, patents, copyright and designs): JT International SA v Commonwealth of Australia [2012] HCA 43. He is also briefed by the Commonwealth against Phillip Morris in international arbitration proceedings.

Mr Cooke appeared for Health World in its successful High Court appeal on the question of “person aggrieved” [2010] HCA 13 and also appeared in the Courts below where Health World sought cancellation of Shin-Sun’s trade mark in Health World Ltd v Shin-Sun Australia Pty Ltd [2008] FCA 100, [2009] FCAFC 14. He also appeared before the Full Court in Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58 and in the application for special leave to appeal to the High Court [2010] HCATrans303.

Mr Cooke recently appeared in the following matters concerning the scope of parallel importation under the Trade Marks Act 1995: Paul’s Retail Pty Ltd v Sporte Leisure Pty Ltd [2012] FCAFC 51, v Paul’s Retail Pty Ltd v Lonsdale Australia Inc [2012] FCAFC 130 and in the application for special leave to appeal to the High Court: Paul’s Retails Pty Ltd v Sporte Leisure Pty Ltd [2012] HCATrans 219.

Mr Cooke regularly appears before the Trade Marks Office. He appeared in Virgin Blue Airlines Pty Ltd v Qantas Airways Ltd [2009] ATMO 30 where he appeared for Qantas in successfully defending an opposition to register the trade mark “all day, every day, low fares”. He appeared for the ABC in successfully opposing registration of a trade mark by Commercial Radio Australia in Australian Broadcasting Corporation v Commercial Radio Australia Ltd. [2010] ATMO 46 ; for Eremad Pty Ltd in successfully resisting an opposition brought by Sanofi-Aventis in Sanofi-Aventis v Eremad Pty Ltd [2010] ATMO 76 ; for Wenger SA in successfully opposing the Greek Cross Device in Wenger SA v Courier Luggage Pty Ltd [2011] ATMO 31 ; and in acting for Accenture in its successful opposition against SanEmpero.

Copyright

Mr Cooke appeared for IceTV in the High Court and in the courts below in successfully defending a claim for copyright infringement: Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172, [2008] FCAFC 71, [2009] HCA 14 (where the High Court dismissed the claim). He also appeared in Parry v Aristocrat Technologies Pty Ltd & Ors [2007] HCATrans 483 and The Polo/Lauren Company L.P. v Ziliani [2008] FCA 49, [2008] FCAFC 195 (parallel imports, copyright, designs).

Mr Cooke appeared for United Broadcasting International Pty Ltd in successfully obtaining an interlocutory injunction against Turkplus Pty Ltd to restrain television broadcasting: United Broadcasting International Pty Ltd v Turkplus Pty Ltd [2010]FCA 594 and in obtaining final relief in United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413.
He appeared for CA Inc in its successful claims against ISI Pty Ltd for copyright infringement and breach of confidentiality concerning computer programs: CA, Inc v ISI Pty Ltd [2012] FCA 35.

Designs

Mr Cooke is currently briefed in the following Federal Court design proceedings: for Bluescope Steel Ltd against Gram Engineering Pty Ltd (design infringement and revocation); for Safetech Hardware Pty Ltd against D&D Group Pty Ltd (mechanical patents and design infringement and revocation).

Confidential Information

He appeared for CA Inc in its successful claims against ISI Pty Ltd for breach of confidentiality and copyright infringement concerning computer programs: CA, Inc v ISI Pty Ltd [2012] FCA 35.

Trade Practices

Mr Cooke appeared for IceTV in successfully defending claims of restraint of tradeIceTV Pty Ltd v Ross [2009] NSWSC 980 ; Ross v IceTV Pty Ltd [2010] NSWCA 272 and in successfully defending the application for special leave to appeal in the High Court: [2-11] HCATrans 214.

He also appeared in Campaign Master (UK) Ltd v Forty Two International Pty Ltd [2008] FCA 979 in successfully resisting an interlocutory injunction based upon s 52 TP Act. Mr Cooke appeared before the Full Court in Barnes v Fortytwo International Pty Ltd [2010] FCAFC 87 in successfully resisting an application for leave to appeal a decision in which he appeared below concerning breach of the implied undertaking:Forty Two International Pty Ltd v Barnes [2010] FCA 397 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398.

Corporate and Commercial

Mr Cooke appeared for John Alexander Clubs in its successful High Court appeal and in the proceedings below defending a claim for breach of fiduciary duty and constructive trust over the White City Land in Alexander’s Club Pty Ltd v White City Tennis Club [2010] HCA 19 [2009] NSWCA 114, [2007] NSWSC 1430. He has also appeared in Coyne v Calabro (No 5) [2010] NSWSC 694 (misrepresentation/contract) and a variety of other corporate and commercial matters including matters relating to breaches of director and other fiduciary duties, contract and property disputes.

Administrative

Mr Cooke appeared in Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 which involved administrative law questions concerning s25A of the Therapeutics Goods Act 1989. Mr Cooke also advises generally on different aspects of the Therapeutic Goods Act 1989. He has also appeared in the Dental Tribunal.

Publications

Bowne SC and Cooke: “Patent Litigation Precedents”, Intellectual Property Precedents, Lexis Nexis, Butterworths
Cooke, “Bulletin (Copyright and Patents)”, Intellectual Property Precedents, Lexis Nexis, Butterworths
O’Connell and Cooke, “Australia: A Patentee’s Paradise?”, [2003] European Intellectual Property Review 481
Cooke and O’Connell “Rags to Riches?” Changes in Australian and European design laws” (2003) Australian Intellectual Property Journal 65; Headnotes, Australian Intellectual Property Reports 2003 – 2004.

Memberships

Mr Cooke is a member of the Intellectual Property Society of Australia and New Zealand and the Copyright Society.